Quran-Burning & the First Amendment

0. What follows was written prior to Terry Jones’s recent cancellation of his Qu’ran-burning scheme. I’ve decided to post it anyway, since a) 9/11/2010 hasn’t yet elapsed, so it’s possible that the scheme might be revived sometime between now and then; and b) the general concepts discussed below remain valid, since the precedents cited have not yet been overruled, and it’s also possible that the constitutional questions raised by Jones’ scheme may someday arise again.

1. I appear to be missing something. Granted, I’m no expert in free-speech law, or in constitutional law generally. (I prefer to devote my attention to constitutional questions that attract far less attention.) Still, I’m a bit unclear as to why Terry Jones’ planned burning of the Qu’ran, should it come to pass, is protected by the First Amendment. I’ve seen this assertion made in various places, both hereatAlexandria, and elsewhereonthe ‘Net. (I’ve also seen the occasional notable exception, e.g., here and here.) However, ISTM that under the Free Speech Clause as currently interpreted by the courts, the City of Gainesville – wherein Jones plans to conduct his Qu’ran-burning – would not necessarily be prohibited from penalizing his actions.

2. The City of Gainesville, Florida regulates “open and outdoor burning” via an ordinance, which prohibits certain types of outdoor combustion if done without a permit. Gainesvile Code of Ordinances, Part II, §10-63(a) reads, in relevant part:

Open burning of the following materials is prohibited.

….

(6) Newspaper.

(7) Corrugated cardboard, container board, office paper.

The issuance of burning permits is governed by §10-70, which reads, in part:

(a) Except for burns conducted pursuant to valid authorization under F.S. Ch. 590 and Rule 5I-2, Florida Administrative Code, no person shall start or maintain any outdoor burning or open burning regulated under this article without a burning permit issued by the risk reduction bureau of the city fire rescue.

….

(f) A burning permit issued under this section shall require compliance with all applicable provisions of this article and any additional special restrictions deemed necessary to protect public health and safety.

(g) Any violation of the conditions of a burning permit shall be deemed a violation of this article. Any violation of this article or the burning permit shall void the permit.

As Eugene Volokh has noted, the provisions of §10-63(a) regarding “Newspaper” and “office paper” would seem to encompass outdoor book-burning. Jones’s church applied for a permit under this provision, but their permit was denied for reasons unbeknownst to me. In any event, given this denial, and the provisions noted above, it appears that Jones’s Qu’ran-burning would violate Gainesville law.

3. As to whether the above ordinance violates the First Amendment, the relevant precedent would seem to be City of Columbus v. Meyer (Ohio Ct. App. 2003). This decision upheld against First Amendment challenge a provision of the Ohio Fire Code, under which the plaintiffs had been charged for burning a “rainbow flag” at a local “Gay Pride Parade.” The law, like that of Gainesville, prohibited “open burning” without a permit. There were two relevant issues raised in that case: first, that the permitting requirement constituted a form of “prior restraint”; and second, that even if the provision was deemed “content-neutral”, it still constituted an impermissible “time, place, and manner” speech restriction. The court disposed of the second argument as follows:

In United States v. O’Brien (1968), 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672, the Supreme Court established a four-part test for determining whether a regulation aimed at nonexpressive conduct, but which has an incidental burden on expressive conduct, constitutes a reasonable time, place, and manner restriction. …. The O’Brien test provides that a government regulation is sufficiently justified if (1) it is within the power of the governmental entity, (2) it furthers an important or substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id., 391 U.S. at 377, 88 S.Ct. 1673, 20 L.Ed.2d 672.

Applying the O’Brien test to O.F.C. F-403, we find that the regulation is justified despite its incidental limitations on expressive activity such as flag burning. The regulation easily satisfies the first three parts of the O’Brien test. Regulating open burning is unquestionably within the city’s constitutional power. See W.W. Enterprises, Inc. v. Brenneman (1960), 112 Ohio App. 242, 245-246, 16 O.O.2d 154, 175 N.E.2d 854 (holding that enactment of fire prevention regulation was within a municipality’s police powers). In addition, O.F.C. F-403 furthers the substantial governmental purpose of reducing the risk of fire and the loss of life and property that often accompanies it. Finally, it would be frivolous to contend that O.F.C. F-403 was in any way expressly intended to suppress free expression.

The fourth part of the O’Brien test requires that O.F.C. F-403’s incidental restriction on First Amendment freedoms be no greater than is essential to the furtherance of the city’s interest in fire prevention. Notably, the regulation need not be the least restrictive or least intrusive means of furthering the government’s interest. Ward v. Rock Against Racism (1989), 491 U.S. 781, 798-799, 109 S.Ct. 2746, 105 L.Ed.2d 661. Such strict scrutiny applies only to content-based regulations, while the O’Brien test applies to regulations aimed at nonexpressive content. Id. at fn. 6. Rather, the O’Brien test applies the more relaxed intermediate scrutiny standard. Erie v. Pap’s A.M. (2000), 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (plurality opinion). O.F.C. F-403 passes this prong of the O’Brien test as well, as it limits only expressive conduct involving fire. While it may well be that expressive conduct involving fire is highly effective, requiring that one obtain a permit before engaging in such conduct places only a minor restriction on free expression. On the one hand, a party who wishes to engage in expressive conduct involving burning may well be able to do so if they first apply for a permit. On the other hand, even if such conduct is not ultimately permitted, the limitation on expressive burning is relatively minor when measured against the avenues of expression speech that remain open and unaffected by the regulation. Accordingly, O.F.C. F-403 is not an illegal time, place, and manner regulation.

Assuming that the Gainesville ordinance was “within the city’s constitutional power”, the above logic would appear to be equally applicable it as well.

[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

The appeals court then concluded that the Ohio fire law’s permit requirement could not be challenged on its face as a prior restraint:

Here, it is readily apparent that under the Lakewood test, defendants may not facially challenge O.F.C. F-403 as an unconstitutional prior restraint, as the regulation is not directed narrowly and specifically at expression or conduct commonly associated with expression. O.F.C. F-403 is a content-neutral regulation aimed at fire prevention that places only an incidental burden on free expression. In addition, O.F.C. F-403 does not vest city officials with broad discretion to discriminate, but presumes that a permit will be granted if the applicant shows that “fire safety requirements and emission standards will be met.” Ohio Adm.Code 1301:7-7-04(C)(4)(b); O.F.C. F-403.4.2.

Admittedly, on my reading of its provisions, the Gainesville ordinance does appear to vest greater discretion in permitting officials than did the aforementioned Ohio law. As such, one could argue that it satisfies the “discretion” prong of the two-pronged Lakewood test. However, even assuming, arguendo, that this is true, the Gainesville law does not appear to meet the second prong, which requires “a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.” With regard to this part of the test, Lakewood distinguished between laws “directed narrowly and specifically at expression or conduct commonly associated with expression”, and

[L]aws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry with them little danger of censorship.

Lakewood then clarified using the example of building permits:

For example, a law requiring building permits is rarely effective as a means of censorship. To be sure, on rare occasion an opportunity for censorship will exist, such as when an unpopular newspaper seeks to build a new plant. But such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse. And if such charges are made, the general application of the statute to areas unrelated to expression will provide the courts a yardstick with which to measure the licensor’s occasional speech-related decision.

The Gainesville ordinance strikes me as being more analogous to the Ohio provision at issue in City of Columbus, or the hypothetical building permits discussed by Lakewood, than the newspaper-licensing scheme struck down by the latter. At most, while Lakewood would appear to allow Jones to bring an “as-applied” challenge disputing his permit denial on First Amendment grounds, such a suit would at the very least require Jones to provide evidence demonstrating that Gainesville denied his permit based on the content of his speech, as opposed to non-speech-related factors (e.g., lack of adequate fire-safety precautions). AFAICT, Jones has made no such showing.

It thus appears doubtful to me that Jones’s actions are protected by the First Amendment. Of course, as noted above, I’m no expert on the matter, so it’s possible I’m completely off-base here. Corrections are welcome.

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